Image Rights Legislation in Guernsey Finally Published

The Image Rights Legislation in Guernsey has been long in the gestation period but has now been published on 19 October, 2012. Subject to the Guernsey Legislature passing it into law in November, the new Legislation will be in force as of 3 December 2012.

The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (the Ordinance). establishes a new form of intellectual property, previously unrecognised in a registrable form anywhere else in the world. Two key concepts are legally recognised: the “registered personality” and “images” which are associated with or registered against that registered personality.

The basic right is the registered personality. Personality refers to the personality of the following types of person or subject (referred to in the Ordinance as the “personnage”):

• natural or legal persons;

• a joint personality;

• a group; or

• a fictional character of a human or non-human.

A legal person may include, for example, the Disney Corporation, and Laurel & Hardy may qualify as joint personalities. In this connection, notice that the Ordinance also applies to joint and indeed individual personalities who are dead, which would include Elvis Presley (reputedly the richest person in the cemetery due to the application of so-called ‘post-mortem’ image rights in the US and the royalties that they generate after the death of the personality concerned), provided that the natural person was “in existence” within the period of 100 years prior to the date of filing of the application for registration of the personality.

An example of a human fictional character would be James Bond, and of a non- human fictional character would be Superman.

“Image rights” are defined in the Ordinance as “exclusive rights in the images associated with or registered against the registered personality”.

And “Image” is widely defined as follows:

• the name of a personnage or any other name by which a personnage is known (e.g. David Beckham or “Becks”);

• voice;

• signature;

• likeness;

• appearance;

• silhouette;

• feature;

• face;

• expressions (verbal or facial);

• gestures;

• mannerisms;

• any other distinctive characteristic or personal attribute of a personnage; and/or

• photographs, illustrations, pictures, moving images, electronic or other representations of a personnage and of no other person, except to the extent that the other person is not identified or singled out in or in connection with the use of such an image.

The registration of a personality lasts for a period of ten years from the date of registration and may be renewed for further periods of ten years. Where a specific image has been registered against the registered personality, the registration of that image lasts for three years and may be renewed for further periods of three years.

A registered personality and the image rights in it are personal or movable property and, as such, may be transmissible by assignment, provided that the assignment is made in writing and signed by or on behalf of the registered proprietor.

There are also provisions requiring registration of certain transactions affecting registered personalities and image rights, which include assignments and the granting of licences.

The new Legislation is quite complex and contains other detailed provisions on such matters as who may be the registered proprietor. It will be interesting to see how the Legislation works out in practice when, as expected, it finally comes into force on 3 December, 2012.

Professor Dr Ian Blackshaw is an International Sports Lawyer and Academic and an Honorary Fellow of the TMC Asser International Sports Law Centre